Making a valid will helps you to identify your intended beneficiaries and the specific portion of your estate that each one will receive. Ontario has specific laws about how a will must be drafted and witnessed in order for it to be valid. If the will is not valid, the laws of intestacy apply.
Making a valid will helps you to identify your intended beneficiaries and the specific portion of your estate that each one will receive. If you do not create a will or you do not follow strict guidelines about how to form a will, your estate will be subject to the Succession Law Reform Act. This may result in unintended consequences. For example, you may intend for your spouse and children to receive equal shares of your estate. However, the Succession Law Reform Act requires your spouse to receive the first $200,000 of your estate. Any inheritance that your children receive may be held by the court until they turn 18.
It is highly recommended that people consult with a lawyer or notary before preparing their own wills. There are a lot of situations where a professional's advice will ensure that your intentions are clear and without any doubt to the beneficiaries. There are many challenges when drafting wills, especially in situations such as where there are children from a previous marriage and special care must be taken. Attorneys have been known to say that they love it when people do their own wills because it creates a lot of work for them when family members argue about the will after they die.
Determine Your Intentions
Consider what you want your will to accomplish. For example, you may want to leave money to a charity, name a guardian for minor children and appoint a personal friend as the person to settle your estate. Give thought to considerations such as:
- appointing an alternative executor
- bequeathing certain property to a particular beneficiary
- establishing a trust for property given to minor beneficiaries
- naming successor beneficiaries in the event that the primary beneficiaries predecease you
Introduce the Will
Write in the first paragraph that the document is your last will and testament, and identify yourself and your address. Canadian law requires that the will be in writing in order for it to be valid.
You must be at least 18 years old and be of sound mind to make a valid will in Ontario. There are exceptions if a minor is married, in the Canadian armed forces or is a sailor at sea. Sound mind means that you do not suffer from an impairment that affects your ability to understand what you are doing.
Name an Executor
Appoint the person who will settle your estate – the executor – and that individual's address. List a successor or alternate executor in case your executor predeceases you or chooses not to serve in this capacity.
Give your executor the right to pay the debts that you owe at the time of your death to creditors. List specific items that you want to bequeath to a beneficiary, such as an antique watch to your nephew. Include the beneficiary's address.
Include a Residual Clause
Write a paragraph about how you want any remainder of your estate divided by your beneficiaries after your specific bequeaths. For example, you may state that you wish to leave the residue of your estate to your spouse.
Write a Conclusion
Write at the end of the document that you are signing the will. State the number of pages that your will consists of and the date.
Have Witnesses Sign
Ask two witnesses to observe you signing the will. The witnesses should not be people who will benefit from the will, such as anyone receiving cash or an asset, nor the spouse of someone receiving an inheritance. The two witnesses and you must be together in the same room at the same time when you each sign the will.
While Ontario law does allow for holographic – or handwritten – unwitnessed wills, the rules are stricter, requiring that the testator write everything in his own handwriting. Having a witness also may help avoid anyone contesting the will, but does not provide any guarantees.